State v. Horseman

NO. 92-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
RUBEN HORSEMAN,
Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.

For Appellant:
Lawrence A. LaFountain, Attorney at Law,
Havre, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Assistant Attorney General,
Helena, Montana
David G. Rice, Hill County Attorney, Havre,
Montana; Brian Lilletvedt, Special Prosecutor,
Havre, Montana

Submitted on Briefs: August 26, 1993
Decided: December 27, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court,

This is an appeal from the Twelfth Judicial District Court,
Hill County, affirming a charge of possession of an unlawfully
killed game animal in violation cf
t -3-lll(1) MCA, against
Ruben Horseman. We affirm,
We restate the issues on appeal:
1. Did the District Court err in determining that Ruben Horseman,
an enrolled tribal member of the Fort Belknap Indian Reservation,
had possession of an illegally killed bighorn sheep?
2. Did the District Court err in determining that it had
jurisdiction to rule in Horseman's case?
3. Did the District Court properly conclude that no evidence was
presented that demonstrated that any established Rocky Boy's Indian
~eservation's extradition procedures were violated or that
extradition was, in fact, required?
On October 21, 1990, Game Warden Mark Earnhardt (Earnhardt) of
the Montana Department of Fish, Wildlife and Parks, observed a
truck traveling west on a county road in Hill County. The truck
had blood runs on the tailgate and was headed for the Rocky Boy's
Reservation. Unable to pursue the vehicle because he was behind a
locked gate, Earnhardt radioed Tribal Warden Matt Denny (Denny) on
the Rocky Boy's Reservation for assistance in stopping the vehicle.
Both parties indicate that upon entering the reservation,
Ruben Horseman (Horseman) was stopped by Denny who discovered a
freshly killed bighorn sheep in the back of Horseman's suburban.
Upon his arrival, Earnhardt issued Horseman citations for
possessing an unlawfully killed bighorn sheep, transporting an
unlawfully killed bighorn sheep and taking a bighorn sheep without
a license.
 These charges were brought in Justice Court for Hill County,
Horseman's motion to dismiss the charge of taking of a bighorn
sheep was granted by the court because Hill County was an improper
venue for a crime committed outside of the county. The record
indicates that the sheep was killed in Blaine County. The
remaining two charges, possessing and transporting an illegally
killed game animal were tried to a jury which found Horseman guilty
of both charges on November 13, 1991. Horseman was fined $500,
ordered to pay $2,000 restitution and had his hunting privileges
suspended for thirty months.
Horseman appealed this judgment to the Twelfth Judicial
District Court. He filed a pretrial motion to dismiss the charges
against him. The District Court granted Horseman's motion to
dismiss the charge of transporting an illegally killed game animal
but denied dismissal of the charge of possession of such animal.
On July 17, 1992, Horseman entered a conditional plea of
pursuant to 5 46-12-204, MCA, for the charge of possession
wguilty*8
of an unlawfully killed game animal in violation of 5 87-3-111(1),
MCA. Horseman's conditional plea contained three issues which were
subject to appeal:
1. That he had the legal right to kill the animal
pursuant to the 1855 Treaty between his tribe, the Gros
Ventre, and the United States;
2. That he was unlawfully arrested on the Rocky Boy's
Reservation; and
3. That he was unlawfully extradited from the Rocky
Boy's Reservation.
The District Court accepted Horseman's plea and found him guilty of
possession of an unlawfully killed game animal in violation of g
87-3-lll(1) MCA, fined him $500 and suspended his hunting
privileges until January 23, 1995. Norseman filed a notice of
appeal on August 20, 1992.

Did the District Court err in determining that Ruben Horseman,
an enrolled tribal member of the Fort Belknap Indian Reservation,
had possession of an illegally killed bighorn sheep?
Horseman argues that 1851 and 1855 Treaties between the Gros
Ventre Tribe and the United States reserved the tribal rights to
hunt in traditional hunting grounds. According to Horseman,
because he killed the sheep on federal land, he is not subject to
State regulations.
The State argues that neither the 1851 or 1855 Treaty, nor any
subsequent agreement affecting the Gros Ventre Tribe and the Fort
Belknap Treaty, reserved a right for tribal members to hunt on
ceded land, or other off-reservation land.
Generally, states have jurisdiction to regulate the wildlife
within their borders. Baldwin v. Fish & Game Commln (1978), 436
U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354. Tribal members are
subject to these state laws when they are off-reservation, unless
off-reservation hunting and fishing rights have been expressly
reserved by the tribe when they ceded lands to the federal
government. Oregon v Klamath (l985), 473 U.S. 753, 105 S.Ct.
.
3420, 87 L.Ed.2d 542. Therefore, in order for the Gros Ventre
Tribe, and hence Horseman, to have the right to be free from state
fish and game regulations while hunting off-reservation, the
treaties made between the tribe and the United States must
specifically reserve this off-reservation privilege.
We note that Norseman mentioned only the 1855 Treaty when he
made his conditional plea. He now argues both the 1851 and 1855
Treaty. Neither treaty provides the reservation he argues.
The Treaty of Fort Laramie was signed in 1851 by the United
States and various tribes, including the Gros Ventre. The purposes
of the 1851 Treaty were to assure safe passage for settlers across
lands of various Indian tribes, to compensate tribes for loss of
buffalo, other game animals, timber and forage, to delineate tribal
boundaries, to promote intertribal peace and to establish a way of
identifying Indians who committed depredations against non-Indians.
Montana v. U.S. (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d
493; Treaty of Fort Laramie, Act of September 17, 1951, 11 Stat.
749. The tribes agreed to stay in their respective territories.
Article 5 is a tribe-by-tribe list of each tribe's respective
territory. At the end of this article is the following paragraph:
It is, however, understood that, in making this
recognition and acknowledgement, the aforesaid Indian
nations do not hereby abandon or prejudice any rights or
claims they may have to other lands; and further. that
thev do not surrender the ~rivileae huntina. fishina,
of
or ~assinu over anv of the tracts of countrv heretofore
described.
The phrase =heretofore described" limits the tribal hunting
privilege to that tract of land specified for each tribe. The
tribes' respective territories, however, continued to get smaller
during subsequent treaties.
 In 1855, a treaty with the Blackfeet Nation, of which the Gros
Ventre was a tribe, set the boundaries of the Blackfeet territory
and established a common hunting ground for 99 years. Treaty with
the Blackfeet, Act of October 17, 1855, 11 Stat. 657. This is an
express reservation for 99 years - which would have ended in 1954.
Despite subsequent treaty documents which diminished tribal lands,
the hunting privilege would have been retained on this larger tract
of land only until 1954, unless expressly revoked before the 99
years had elapsed.
In 1874, the 43rd Congress set up a reservation for the Gros
Ventre, Piegan, Blood, Blackfeet and River Crow. Act of April 15,
1874, 18 Stat. 28. The reservation which was set up during the
first session of the 43rd Congress in 1874, was reduced in size by
the 50th Congress in 1888. Act of May 1, 1888, 25 Stat. 113.
Article I1 of Chapter 213, published in 1888, states that:
The said Indians hereby cede and relinquish to the United
States all their right, title, and interest in and to all
the lands embraced within the aforesaid Gros Ventre,
Piegan, Blood, Blackfeet and River Crow Reservation, not
herein, specifically set apart and reserved as separate
reservations for them, and do severally agree to accept
and occupy the separate reservations to which they are
herein assigned as their permanent homes, and they do
hereby severally relinquish to the other tribes or bands
respectively occupying the other separate reservations,
all their right, title, and interest in and to the same,
reserving to themselves only the reservation herein set
apart for their separate use and occupation.
What followed was the boundaries for the Fort Peck and Fort Belknap
reservations. Nothing in Chapter 213 refers to hunting.
Again, in 1896, an agreement was signed between the United
States and the Indians of the Fort Belknap Reservation, 54th
Congress, Session I. Act of June 10, 1896, Chapter 398, 29 Stat,
350, In this agreement, the Indians once again ceded land to the
United States for which they received payment. Nothing in this
chapter reserved hunting rights on lands ceded,
Of all the treaties and subsequent amendments, only the 1855
Treaty reserves hunting rights to co~nmanhunting grounds. That
reservation was for 99 years only and has now been extinguished.
Horseman cites State v Stasso (1977), 172 Mont. 242, 563 P.2d
.
562, as precedent for the fact that he as a tribal member is

permitted to hunt in "open and unclaimed*' lands off the
reservation. Stasso interpreted a treaty with the Salish and
Kootenai tribes and is not precedent for a separate treaty with the
Gros Ventre.
Stasso involved an interpretation of the Treaty of Hell Gate,
signed in 1855. The tribes involved in the Hell Gate Treaty
specifically reserved the right to hunt and fish in open and
unclaimed areas:
The exclusive right of taking fish in all the streams
running through or bordering said reservation is further
secured to said Indians; as also the right of taking fish
at all usual and accustomed places, in common with
citizens of the Territory, and of erecting temporary
buildings for curing; together with the privileae of
huntinq, gathering roots and berries, and pasturing their
horses and cattle upon open and unclaimed land. (Emphasis
added. )
Article 11, Treaty of Hell Gate, Act of July 16, 1855, 12 Stat.
975. The Stasso case interprets "open and unclaimed landsn to
include National Forests, where the particular animal in question
was killed.
 The treaties involved in the case before us do not contain
such wording. The 1855 Treaty with the Blackfeet Nation contains
the only express reservation of hunting rights and that reservation
of rights ended in 1954. Therefore, Horseman was subject to the
State game laws while off the reservation.
We hold that the District Court did not err in determining
that Ruben Horseman had possession of an illegally killed big horn
sheep.

Did the District Court err in determining that it had jurisdiction
to rule in Horseman's case?
Horseman argues that the District Court had no jurisdiction to
rule in this case because he is a tribal member and the offense
took place on tribal land. The State argues that the offense
occurred off the reservation and that Horseman was voluntarily
place& in state custody by tribal =~thori?qy.
Horseman filed a pretrial motion with the District Court to
dismiss his case for lack of personal jurisdiction to rule on the
case. The court denied the motion. Horseman then entered a
conditional guilty plea to the District Court pursuant to 9 46-12-
204 ( 3 ) , MCA:
With the approval of the court and the consent of the
prosecutor, a defendant may enter a plea of guilty,
reserving the right, on appeal from the judgment, to
review the adverse determination of any specified
pretrial motion. If the defendant prevails on appeal,
the defendant must be allowed to withdraw the plea.
Horseman's pretrial motion was one to dismiss for lack of
jurisdiction. We review a district court decision of denial of a
motion to dismiss as to whether the court abused its discretion.
Gold Reserve Corp. v. McCarty (1987), 228 Mont. 512, 744 P.2d 160.
Horseman, as defendant, had the burden of proving to the court
that the alleged offense was committed at a location which deprived
the State of jurisdiction to prosecute. Stasso, 172 Mont. at 248,
563 P.2d at 565. The record is devoid of any evidertc@ to indicate
that the offense for which Horseman is charged occurred on his own
reservation, thus denying Hill County jurisdiction. While Horseman
argues that the offense occurred on the reservation, statements
included in an appellate brief but which are not in the record will
not be considered on appeal. Credit Associates v. Harp (1990), 243
Mont. 281, 794 P.2d 343.
The only hard evidence that exists in this file is found in
the three original tickets issued by Earnhardt to Horseman. Those
tickets state that all three alleged offenses occurred in Hill
County, at a location off the Rocky Boy's reservation. When
disputes involving Indians arise within the state but outside of
Indian reservation boundaries, the state may assume jurisdiction
over the matter. Application of Bertelson (1980), 189 Mont. 524,
617 P.2d 121. Horseman has provided no evidence that jurisdidction
lay with another sovereign other than the State of Montana.
Further, Horseman was not a member of the tribes included
within the Rocky Boy's Reservation; he is a member of the Gros
Ventre tribe living on the Fort Belknap Reservation. He is, for
purposes of this action, a wnon-member~~
Indian on the Rocky Boy's
Reservation where he was detained. At the time of Horseman's
crime, Indian tribes lacked misdemeanor criminal jurisdiction over
non-member Indians. Duro v Reina (1990), 495 U.S. 676, 110 S.Ct.
.
2053, 109 L.Ed.2d 693. Rocky Boy ' s tribes, therefore, had no
jurisdiction for Horseman's misdemeanor crime because Horseman was
a member of another tribe from the Fort Belknap Reservation.
has now been superseded by federal statute reinstating a
tribe's misdemeanor criminal jurisdiction over non-members. That
reinstatement did not take effect, however, until October 18, 1991.
The crime with which we are concerned took place in October of
1990, a full year before the tribes regained their misdemeanor
criminal jurisdiction over non-member Indians. See Act Nov. 5,
1990, P.L. 101-511, 5 8077(d), 104 Stat. 1893; Oct. 9, 1991, P L
..
102-124, § 1 105 Stat. 616, was repealed by Act Oct. 28, 1991,
P.L. 102-137, 5 1, 105 Stat. 646.
We conclude that the District Court had proper jurisdiction to
rule in this case. Therefore, we hold that the District Court did
not err in assuming jurisdiction over Horseman's case.

Did the District Court properly conclude that no evidence was
presented that demonstrated that any established Rocky Boy's Indian
Reservation's extradition procedures were violated or that
extradition was, in fact, required?
Horseman argues that he was illegally transported off the
reservation. His contention is that the Rocky Boy's Tribal
extradition procedures were not used. The State contends that the
act of possessing and transporting an illegally killed game animal
occurred off the reservation in Hill County and that Horseman's
arrest and subsequent exit from the reservation occurred with the
complete cooperation of tribal authorities.
The District Court determined that Horseman's arrest occurred
with the help and cooperation of tribal authorities. The court
then determined that no evidence was presented by Horseman that
Rocky Boy% extradition procedures were violated or that
extradition was even required.
Both parties to this action have failed to present to this
Court or to the lower court any of the appropriate case law upon
which this case must be decided. Three months before Horseman
illegally killed the big horn sheep, the United States Supreme
Court in a well publicized opinion stated that:
[the] assertion of jurisdiction by the Tribe over an
Indian who was not a member would violate the equal
protection guarantees of the Indian Civil Rights Act.
m, 110 S.Ct. at 2058. The Duro Court went on to hold that:
Indian tribes lack jurisdiction over persons who are not
tribe members.
m, 110 S.Ct. at 2059. Thus, according to the law at the time of
the crime, the Rocky Boy's tribes had no misdemeanor criminal
jurisdiction over Horseman, a member of the Fort Belknap
Reservation.
Although the m decision has been superseded by statute, the
decision is still good law as it involves tribal sovereignty. The
case has been cited as precedent for the proposition that:
Where jurisdiction to try and punish an offender rests
outside the tribe, tribal officers may exercise their
power to detain the offender and transport him to the
proper authorities.
m, 110 S.Ct. at 2066. Primeaux Y. Leapley (S.D. 1993), 502
N.W.2d 265, 270, and State v. Schmuck (Wash. 1993), 850 P.2d 1332,
1339.
Here, the State offered the Primeaux decision in a "Notice"
filed at the eleventh hour on November 12, 1993. The notice was an
attempt to present this Court with additional "recentw authority in
the Horseman case. The "recentsfPrimeaux decision cited by the
State was actually decided in June of 1993, two months before the
Horseman action was filed in this Court. It was presented to the
Court three months after the August, 1993, filing date of the last
brief on appeal. The State's "Noticen is inappropriate. It does
more than simply add a more "recentm authority on an already argued
legal theory--it adds a totally new legal argument to the case,
heretofore unmentioned in either party's court documents.
In its appellate briefs, neither party argued the
decision which was relied on by the primeaux court. Nor did either
party attach any importance to Horseman's non-member status at the
time of the crime. Neither party mentions tribal sovereignty. The
only issue argued on appeal is extradition and whether it was
needed or not.
The underlying issue in this case is not whether the formal
procedures for extradition were needed or applied correctly, but
whether the Rocky Boy's warden as an officer of the tribe had the
jurisdiction under the facts of this case to cooperate with
Earnhardt and detain Horseman. The United States Supreme Court has
stated that the tribes also possess their traditional and
undisputed power to exclude persons whom they deem to be
undesirable from tribal lands. Brendale v. Confederated Tribes &

Bands of the Yakima Nation (l989), 492 U.S. 408, 109 S.Ct. 2994,
106 L.Ed.2d 343. Subsequent to Brendale, the Duro Court stated
that:
Tribal law enforcement authorities have the power to
restrain those who disturb public order on the
reservation, and if necessary, to eject them.

Earnhardt radioed Denny that the suspect was approaching the
reservation and that he could not get to him before he entered the
reservation. Earnhardt asked for Denny's help in stopping the
suspect whom he suspected had possession of an illegally killed big
horn sheep. Denny stopped Horseman, discovered the sheep, and
detained Horseman for several minutes until Earnhardt arrived. We
conclude that under the precedent concerning sovereignty of a
tribe, the Rocky Boy's warden acted appropriately within his tribal
jurisdiction by detaining and then relinquishing Horseman to Hill
County authorities.
We conclude that Horseman has offered no evidence that would
indicate that the Chippewa-Cree tribal code applies to the facts of
this case. The facts show that a tribal officer detained Horseman
upon request from Earnhardt and that according to fundamental
principles of tribal sovereignty, the tribal officer had authority
to relinquish Horseman to Earnhardt. The record indicates that any
consideration of extradition is extraneous to the facts of this
case.
 We hold the District Court properly concluded that no evidence
was presented that demonstrated any established Rocky Boy's Indian
Reservation extradition procedures were violated or that
extradition was, in fact, required,
Affirmed.

Justices
Justice Terry N. Trieweiler dissenting.
I dissent from that part of the majority opinion which
concludes that Ruben Horseman's arrest by a Montana Game Warden did
not violate the extradition laws of the Rocky Boy's Reservation.
The Chippewa-Cree Law and Order Code, Title IV, Part 1,
Section 1.12, provides in relevant part that:
(2) An alleged fugitive may not be turned over to
state or federal authorities until after the person has
been afforded a hearing in Tribal Court to determine
whether probable cause exists as to the allegation of a
crime by that person.
The District Court ignored the tribal extradition law based on
its erroneous conclusion that it had no evidence that the Tribe's
extradition rules had been violated. However, Rule 202 (d),
M.R.Evid., provides that:
A court shail take judicial notice:
(1) of the common law, constitutions and statutes
of the United States and of this and every other state,
territory and jurisdiction of the United States.
[Emphasis added].
The Rocky Boy's Reservation is a jurisdiction within the
United States and the District Court had an obligation to take
judicial notice of the extradition procedure provided for in its
Law and Order Code.
The majority opinion disposes of Horseman's invocation of the
Tribe's extradition procedure based on decisions which have nothing
to do with this issue. The U.S. Supreme Court's ill-advised
decision in Dcrro v Reirza (lggQ), 495 U.S. 676, 110 S. Ct. 2053, 109
.
L. Ed. 2d 693, dealt with a tribe's authority to prosecute
non-members for misdemeanors committed on the reservation. It had
nothing to do with the Tribe's authority to establish reasonable
extradition procedures for those who commit crimes elsewhere but
are apprehended on the reservation.
Neither is the fact that tribes have undisputed authority to
exclude undesirable people from their land relevant. The fact in
this case is that the Tribe has established a procedure by which
undesirable people may be excluded, and it was not followed. The
fact that a tribal law enforcement officer participated in the
violation of the Tribe's extradition procedure makes no difference.
It was still violated, and its violation was an infringement on the
sovereignty of the Rocky Boy's Reservation. Such infringement
should not be tolerated, and this fact aione is a sufficient basis
for invalidating Horseman's arrest.
I agree with the decision of the Ninth Circuit Court of
Appeals in Arizona exrel. Mem'llv. Turtle (9th Cir. 1969), 413 F.2d 683,

when it held that the State of Arizona could not ignore the Navajo
Tribe's extradition laws. In that case, the Ninth Circuit stated
that:
We have been referred to no specific Congressional action
limiting the power of the Navajo tribal government to
deal with the extradition of Indians resident within the
Reservation or granting to the State of Arizona the
authority to exercise extradition jurisdiction over such
residents. In these circumstances, Arizona's right to
exercise the jurisdiction claimed must be determined in
light of whether such exercise would "infring[e] on the
 right of reservation Indians to make their own laws and
be ruled by them," (Williams v. Lee, supra at p. 220 of
358 U.S., at p. 271 of 79 S.Ct.) or, as the Williamsv
test was characterized by the court in Kake, Organized
Village of v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d
573 (1961), "whether the application of that law would
interfere with reservation self-government.If Id. at
p. 67, 82 S.Ct. at p. 567.
Applying these considerations, we conclude that
Arizona's exercise of the claimed jurisdiction would
clearly interfere with rights essential to the Navajo's
self-government. The essential and intimate relationship
of control of the extradition process to the right of
self-government was recognized long ago in Kentucky v.
Dennison, 24 How. 66, 16 L.Ed. 717 (186l), holding that
there is no power, state or federal, to compel a state to
perform its constitutional duty of extradition.

In 1956, the Navajo Tribal Council, the tribal
legislative body, adopted a Resolution providing
procedures for Indian extradition. . . .
The Tribe has
thus codified and does now exercise its extradition
power. This power cannot now be assumed by or shared
with the State of Arizona without lvinfring[ing]on the
right of reservation Indians to make their own laws and
be ruled by them." Williams v. Lee, supra at p. 220 of
358 U.S., at p. 271 of 79 Sect. [Footnote omitted].

Likewise, we have been referred to no federal action which
would limit the right of the Rocky Boy's Reservation to deal with
the extradition of individuals found and arrested on tribal land
for crimes which were committed elsewhere. To limit that authority
by judicial decision, as the majority has done, clearly interferes
with the rights essential to the Tribe's self-government.
Therefore, I dissent from that part of the majority opinion which
concludes that Horseman's arrest was not illegal because it did not
violate the extradition procedures established by the Chippewa-Cree

Law and Order Code.

Justice William E. Hunt, Sr., joins in the foregoing dissent.
 December 27, 1993

CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Lawrence A. JAFountain
Attorney at Law
P.O. Box 1532
Havre, MT 59501

Hon. Joseph P. Mazurzk, Attormy General
Carol Schmidt, Assistant
Justice Bldg.
Helena, MT 59620

David G. Rice
Hill County Attorney
P. 0. 3ux 912
Havre, MT 59501-0912

Brian Lilletvedt
Special Prosecutor
P.O. Box 7152
Havre, MT 59501

ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA

BY:
Deputy 4